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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`San Francisco Division
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`STRIKE 3 HOLDINGS, LLC,
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`Case No. l7—cv—07051-LB
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`Plaintiff,
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`V-
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`ORDER GRANTING THE PLAINTIFF'S
`EX PARTE MOTION TO TAKE EARLY
`DISCOVERY
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`JOHN DOE SUBSCRIBER ASSIGNED IP
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`ADDRESS 108.224.80.148,
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`Re: ECF No. 7
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`Defendant.
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`INTRODUCTION
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`The plaintiff Strike 3 Holdings owns the copyrights for several adult motion pictures.1 It
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`alleges that someone — the Doc defendant here — who uses the IP address 108.224.80.148
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`infringed on those copyrights.2 Despite its own efforts, Strike 3 Holdings has not been able to
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`identify the individual associated with that IP address.3 Strike 3 Holdings now asks the court to let
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`it serve a subpoena on non-party AT&T, Inc., the Doe defendant’s intemet service provider, to
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`l Mot. — ECF No. 7 at 8. Record citations are to material in the Electronic Case File (“ECF”); pinpoint
`citations are to the ECF-generated page numbers at the tops of the documents.
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`2 Id.
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`3 Id. at 16.
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`ORDER — No. 17-cv-07051-LB
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`Case 3:17-cv-07051-LB Document 8 Filed 01/10/18 Page 2 of 8
`Case 3:17-cv-07051—LB Document 8 Filed 01/10/18 Page 2 of 8
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`learn the Doe defendant’s identity.4 Because Strike 3 Holdings has demonstrated that good cause
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`exists to allow it to serve a subpoena, the court grants the motion.
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`STATEMENT
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`Strike 3 Holdings is the owner of several adult motion pictures distributed through its adult
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`brands Blocked, Tushy, and Vixen.5 The motion pictures are registered with the United States
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`Copyright Office or have complete applications pending.6
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`The Doe defendant, who uses the AT&T-provided IP address 108.224.80.148, used the file
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`distribution network known as “BitTorrent” to illegally download and distribute Strike 3
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`Holdings’s copyrighted movies.7 Through well-accepted geolocation technology, Strike 3 has
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`traced each download made to the Doe defendant’s IP address to a physical address in the
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`Northern District of California.8 Strike 3 Holdings’s investigator established direct “TCP/IP”
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`connections with the defendant’s IP address while the defendant was using BitTorrent.9 The
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`investigator downloaded media files containing a digital copy of Strike 3’s copyrighted movies
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`from the defendant.10 The “file hash” — a unique value that acts as a “fingerprint” identifying
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`media files — confirmed that the files the investigator downloaded were downloaded from the
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`defendant.11 The defendant “has been recorded infringing 27 movies over an extended period of
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`time.”12 Strike 3 Holdings did not give the defendant permission or authorization to distribute its
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`4 See generally id.
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`5 Compl. — ECF No. 1 at 1 (1111 2—3), 6 (1111 35—37).
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`6 Id. at 5 (1111 31—33).
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`7 Id. at 4 (11 23).
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`3 Id. at 2 (11 9).
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`9 Id. at 4_5 (11 24).
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`1° Id. at 5 (11 25).
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`“ Id. (11 26).
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`‘2 Id. at 2 (11 4).
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`ORDER — No. 1 7-cv-0705 1 -LB
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`Case 3:17-cv-07051-LB Document 8 Filed 01/10/18 Page 3 of 8
`Case 3:17-cv-07051—LB Document 8 Filed 01/10/18 Page 3 of 8
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`copyrighted movies.l3 Strike 3 Holdings alleges that AT&T Inc. can identify the defendant
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`through his or her IP address.14
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`On December 11, 2017, Strike 3 Holdings filed a complaint against the Doe defendant alleging
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`one claim for copyright infringement under the Copyright Act.15 On January 4, 2018, Strike 3
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`Holdings filed an ex parte motion asking the court to allow it to serve AT&T with a subpoena
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`under Federal Rule of Civil Procedure 45.16 Strike 3 Holdings says that the subpoena will be
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`limited to the name and address of the individual/individuals associated with the Doe defendant’s
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`IP address.”
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`GOVERNING LAW
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`A court may authorize early discovery before the Rule 26(f) conference for the parties’ and
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`Witnesses’ convenience and in the interests ofjustice. Fed. R. Civ. P. 26(d). Courts within the
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`Ninth Circuit generally consider whether a plaintiff has shown “good cause” for early discovery.
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`See, e.g., 10 611)., Inc. v. Does [-65, No. C 10-4377 SC, 2010 WL 4055667, at *2 (ND. Cal. Oct.
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`15, 2010); Semitool, Inc. v. Tokyo Electron Am, Inc., 208 FRD. 273, 275-77 (N.D. Cal. 2002);
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`Tex. Guaranteed Student Loan Corp. v. Dhindsa, No. C 10-0035, 2010 WL 2353520, at *2 (ED.
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`Cal. June 9, 2010); Yokohama Tire Corp. v. Dealers Tire Supply, Inc., 202 F.R.D. 612, 613-14 03.
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`Ariz. 2001) (collecting cases and standards). “Good cause may be found where the need for
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`expedited discovery, in consideration of the administration ofjustice, outweighs the prejudice to
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`the responding party.” Semitool, 208 F.R.D. at 276.
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`In evaluating whether a plaintiff establishes good cause to learn the identity of a Doe
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`defendant through early discovery, courts examine whether the plaintiff: (1) identifies the Doe
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`defendant with sufficient specificity that the court can determine that the defendant is a real person
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`‘3 Id. at 6 (11 37).
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`‘4 Id. at 2 (11 5).
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`‘5 Id. at $7 (1m 3+39).
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`1‘ Mot. — ECF No. 7.
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`‘7 Proposed Order — ECF No. 7-4 at 1.
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`ORDER — No. 1 7-cv-0705 1 -LB
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`Case 3:17-cv-07051-LB Document 8 Filed 01/10/18 Page 4 of 8
`Case 3:17-cv-07051—LB Document 8 Filed 01/10/18 Page 4 of 8
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`who can be sued in federal court; (2) recounts the steps taken to locate and identify the defendant;
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`(3) demonstrates that the action can withstand a motion to dismiss; and (4) shows that the
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`discovery is reasonably likely to lead to identifying information that will permit service of process.
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`Columbia Ins. Co. v. seescandv.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999) (citations omitted).
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`“‘[W]here the identity of alleged defendants [is not] known prior to the filing of a complaint[,] the
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`plaintiff should be given an opportunity through discovery to identify the unknown defendants,
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`unless it is clear that discovery would not uncover the identities, or that the complaint would be
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`dismissed on other grounds.” Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999)
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`(quoting Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)).
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`ANALYSIS
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`1. Strike 3 Holdings Establishes Good Cause for Early Discovery
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`Strike 3 Holdings has made a sufficient showing under each of the four seescandy factors
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`listed above to establish good cause to permit it to engage in early discovery to identify the Doe
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`defendant.
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`First, Strike 3 Holdings has identified the Doc defendant with sufficient specificity that the
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`court can determine that he or she is a real person who can be sued in federal court. It alleges that
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`the Doe defendant downloaded Strike 3 Holdings’s copyrighted adult motion pictures and
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`distributed them over the BitTorrent network. 18 To download the movie, Doe defendant had to
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`direct his or her BitTorrent client to download the media file.19 These facts indicate that the Doe
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`defendant is an identifiable adult who likely is the primary subscriber of the IP address or
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`someone who resides with and is known to the subscriber. Strike 3 Holdings also has traced each
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`download made to the Doe defendant’s IP address to the Northern District of California, thus
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`giving the court jurisdiction over the defendant and Strike 3’s federal claim.20
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`‘8 Comp]. — ECF No. 1 at 4 (11 23), 6 (11 38).
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`‘9 Mot. — ECF No. 7 at 15.
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`2° Comp]. — ECF No. 1 at 2 (11 9).
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`ORDER — No. 1 7-cv-0705 1 -LB
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`Case 3:17-cv-07051-LB Document 8 Filed 01/10/18 Page 5 of 8
`Case 3:17-cv-07051—LB Document 8 Filed 01/10/18 Page 5 of 8
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`Second, Strike 3 Holdings has recounted the steps taken to locate and identify the Doc
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`defendant. The Doe defendant downloaded and distributed Strike 3 Holdings’s movies through his
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`or her IP address, and his or her IP address was traced to this district.21 The IP address is not
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`sufficient for Strike 3 to identify the Doe defendant.
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`Third, Strike 3 Holdings has demonstrated that its copyright claim could withstand a motion to
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`dismiss. A plaintiff “must satisfy two requirements to present a prima facie case of direct
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`infringement: (1) [he or she] must show ownership of the allegedly infringed material and (2) [he
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`or she] must demonstrate that the alleged infringers violate at least one exclusive right granted to
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`copyright holders under 17 U.S.C. § 106.” Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146,
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`1159 (9th Cir. 2007) (citing A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir.
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`2001)); see 17 U.S.C. § 501(a). Under Section 106, a copyright holder has the exclusive rights to
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`reproduce, distribute, publicly display, perform, and create derivative works of the copyrighted
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`work. Direct copyright infringement does not require intent or any particular state of mind. Fox
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`Broad. Co, Inc. v. Dish Network, LLC, 905 F. Supp. 2d 1088, 1098-99 (CD. Cal. 2012); Religious
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`Tech. Ctr. v. Netcom On-Line Commc’n Servs., Inc., 907 F. Supp. 1361, 1367 (N.D. Cal. 1995).
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`Strike 3 Holdings alleges that it holds the copyrights for the adult motion pictures that the Doe
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`defendant downloaded (and thus copied) and distributed the movies without its permission.22
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`Strike 3 Holdings has sufficiently alleged a prima facie claim for copyright infringement.
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`Fourth, Strike 3 Holdings has shown that the discovery it seeks is reasonably likely to lead to
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`identifying information that will permit service of process on the Doe defendant. Strike 3 Holdings
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`alleges that AT&T’s records should identify the Doe defendant. 23
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`2‘ Id. (11 8).
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`22 Id. at 5 (111] 27—3 1).
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`23 Id. at 2 (11 5).
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`ORDER — No. 1 7-cv-0705 1 -LB
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`Case 3:17-cv-07051-LB Document 8 Filed 01/10/18 Page 6 of 8
`Case 3:17-cv-07051—LB Document 8 Filed 01/10/18 Page 6 of 8
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`2. Protective Order
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`“[U]nder Rule 26(c), the Court may sua sponte grant a protective order for good cause
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`shown.” McCoy v. Southwest Airlines Co., Inc., 211 F.R.D. 381, 385 (C.D. Cal. 2002). The court
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`issues the limited protective order described below because the ISP subscriber may be an innocent
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`third party, the subject matter of the suit deals with sensitive and personal matters.
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`Here, as has been discussed by other courts in this district, the ISP subscribers may not be the
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`individuals who infringed upon Strike 3 Holdings’s copyright. See, e.g., Pacific Century Intern.
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`Ltd. v. Does 1-101, No. C—l 1—02533 (DMR), 2011 WL 5117424, at *2 (N.D. Cal. Oct. 27, 2011);
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`see also 10 Group, Inc. v. Does 1-19, No. C 10-03851 SI, 2011 WL 772909, at *1 (N.D. Cal. Mar.
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`1, 2011) (granting the plaintiff additional time to identify and serve the true defendant where a
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`subscriber asserted that he did not infringe plaintiff’s work, suggesting that someone else used his
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`IP address to infringe the plaintiffs work, and the plaintiff claimed that it needed to take third-
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`party discovery from the subscriber to try to identify who actually used the subscriber’s IP address
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`to allegedly infringe the plaintiff’s work).
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`Additionally, requests for pseudonymity have been granted when anonymity is necessary to
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`preserve privacy in a matter of a sensitive and highly personal nature. See Does I Thru XUII v.
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`Advanced Textile Corp. , 214 F.3d 1058, 1068 (9th Cir. 2000). An allegation that an individual
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`illegally downloaded adult motion pictures likely goes to matters of a sensitive and highly
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`personal nature, including one’s sexuality.
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`Accordingly, the court issues a protective order to the limited extent that any information
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`regarding the Doe defendant released to Strike 3 Holding by the ISP will be treated as confidential
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`for a limited duration. See 10 Group, Inc. v. Does [-19, No. C 10-03851 SI, 2010 WL 5071605, at
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`*2 (N.D. Cal. 2010). Specifically, Strike 3 Holdings must not publicly disclose that information
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`until the Doe defendant has the opportunity to file a motion with this court to be allowed to
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`proceed in this litigation anonymously and that motion is ruled on by the court. Id. Ifthe Doe
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`defendant fails to file a motion for leave to proceed anonymously within 30 days after his or her
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`information is disclosed to Strike 3 Holdings’s counsel, this limited protective order will expire.
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`Id. Given the potential embarrassment associated with being publicly accused of having illegally
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`ORDER — No. 1 7-cv-0705 1 -LB
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`Case 3:17-cv-07051-LB Document 8 Filed 01/10/18 Page 7 of 8
`Case 3:17-cv-07051-LB Document 8 Filed 01/10/18 Page 7 of 8
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`downloaded adult motion pictures, if the Doe defendant includes identifying information within
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`his or her request to proceed anonymously, the court finds good cause to order the papers filed
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`under seal until the court has the opportrmity to rule on the request. See id. at 3 (permitting party
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`to file under seal a declaration with identifying information). Ifthe Doe defendant includes
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`identifying information with his or her request to proceed anonymously and the request is placed
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`under seal, the court will direct the Doe defendant to submit a copy of the under-seal request to
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`Strike 3 Holdings and will ensure that Strike 3 Holdings has time to respond.
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`CONCLUSION
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`The court GRANTS Strike 3 Holdings’s Ex Parte Motion for Expedited Discovery with
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`respect to JOHN DOE subscriber assigned IP address 108.224.80.148 as follows.
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`1.
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`IT IS HEREBY ORDERED that Strike 3 Holding may immediately serve a Rule 45
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`subpoena on AT&T, Inc. to obtain the Doe defendant’s true name and addresses. The subpoena
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`must have a copy of this order attached.
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`2.
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`IT IS FURTHER ORDERED that the ISP will haveM from the date of service
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`upon them to serve the Doe defendant with a copy of the subpoena and a copy of this order. The
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`ISP may serve the Doe defendant using any reasonable means, including written notice sent to his
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`or her last known address, transmitted either by first-class mail or via overnight service.
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`3.
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`IT IS FURTHER ORDERED that the Doe defendant will haveM from the date of
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`service upon him or her to file any motions contesting the subpoena (including a motion to quash
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`or modify the subpoena) with the court that issued the subpoena. If that 30-day period lapses
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`without the Doe defendant contesting the subpoena, the ISP will haveM to produce the
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`information responsive to the subpoena to Strike 3 Holdings.
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`4. IT IS FURTHER ORDERED that the subpoenaed entity must preserve any subpoenaed
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`information pending the resolution of any timely-filed motion to quash.
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`5. IT IS FURTHER ORDERED that the ISP that receives a subpoena pursuant to this order
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`must confer with Strike 3 Holdings and may not assess any charge in advance of providing the
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`ORDER — No. 1 7-cv-0705 1 -LB
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`Case 3:17-cv-07051-LB Document 8 Filed 01/10/18 Page 8 of 8
`Case 3:17-cv-07051-LB Document 8 Filed 01/10/18 Page 8 of 8
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`information requested in the subpoena. The ISP that receives a subpoena and elects to charge for
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`the costs of production must provide a billing summary and cost reports that serve as a basis for
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`such billing summary and any costs claimed by the ISP.
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`6. IT IS FURTHER ORDERED that Strike 3 Holdings must serve a copy of this order along
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`with any subpoenas issued pursuant to this order to the necessary entities.
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`7. IT IS FURTHER ORDERED that any information disclosed to Strike 3 Holdings in
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`response to a Rule 45 subpoena may be used by Strike 3 Holdings solely for the purpose of
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`protecting Strike 3 Holdings’s rights as set forth in its complaint.
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`IT IS SO ORDERED.
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`Dated: January 10, 2018 M&
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`LAUREL BEELER
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`United States Magistrate Judge
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`ORDER — No. 17-cv-07051-LB
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